European Court of Human Rights

 

 

 

FIFTH SECTION

 

 

 

 

 

 

CASE OF SOLOPOVA v. UKRAINE

 

( Application no. 17278/18 )

 

 

 

 

 

 

 

 

 

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

 

27 June 2019

 

 

 

This judgment is final but it may be subject to editorial revision.

In the case of Solopova v. Ukraine ,

The European Court of Human Rights ( Fifth Section ), sitting as a Committee composed of:

Yonko Grozev , President,
Ganna Yudkivska ,
André Potocki , judges,
and Liv Tigerstedt , Acting Deputy Section Registrar ,

Having deliberated in private on 6 June 2019 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.     The case originated in an application against Ukraine lodged with the Court under Article   34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on 12 April 2018 .

2.     The applicant, who had been granted legal aid, was represented by Mr   G.V. Tokarev , a lawyer practising in Kharkiv .

3.     Notice of the application was given to the Ukrainian Government ("the Government").

4 .     On 27 April 2018 the Court applied an interim measure under Rule 39 of the Rules of Court indicating to the authorities to immediately provide the applicant with medical treatment in accordance with the established diagnosis and in compliance with the prescribed treatment protocol. On the same day priority treatment was given to the case under Rule 41 of the Rules of Court.

THE FACTS

5.     The applicant ' s details and information relevant to the application are set out in the appended table.

6.     The applicant alleged that she did not receive adequate medical care in detention .

THE LAW

I.     ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

7.     The applicant complained that she was not afforded adequate medical treatment in detention . She relied on Article   3 of the Convention, which reads as follows :

Article   3

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

8.     The Government considered that the application was premature owing to the fact that a criminal investigation into the fact of alleged malpractice was being carried out.

9.     The Court finds that the proceedings referred to by the Government cannot be considered as an effective remedy within the meaning of the Convention (see Melnik v. Ukraine , no. 72286/01, §§ 69-70, 28 March 2006) and therefore the application cannot be rejected as premature.

10.     The Court notes that the applicant suffered from a serious oncologic disease, as indicated in the appended table, which affected her everyday functioning.

11.     The Court reiterates that the "adequacy" of medical assistance remains the most difficult element to determine (see Blokhin v.   Russia [GC], no.   47152/06, §   137, ECHR 2016). It has clarified in this context that the authorities must ensure that diagnosis and care are prompt and accurate ( see Pokhlebin v.   Ukraine , no.   35581/06, § 62, 20 May 2010 , and Gorbulya v.   Russia , no.   31535/09, § 62, 6   March 2014, with further references) and that - where necessitated by the nature of a medical condition - supervision is regular and systematic and involves a comprehensive therapeutic strategy aimed at successfully treating the detainee ' s health problems or preventing their aggravation (see, inter alia , Ukhan v.   Ukraine , no. 30628/02, §   74, 18   December 2008, and Kolesnikovich v.   Russia , no.   44694/13, §   70, 22   March 2016, with further references). The Court stresses that medical treatment within prison facilities must be appropriate and comparable to the quality of treatment which the State authorities have committed themselves to providing for the entirety of the population. Nevertheless, this does not mean that each detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities (see Konovalchuk v.   Ukraine , no.   31928/15, §   52, 13   October 2016, and Sadretdinov v.   Russia , no.   17564/06, §   67, 24   May 2016, with further references).

12.     The Court observes that the applicant was not left entirely without medical care while in detention. She received certain medication and underwent a number of examinations. However, the Court cannot subscribe to the Government ' s argument that the level of medical care provided to her was timely and sufficient. It further observes that the applicant ' s treatment started with delay, it was provided only in part and apparently did not correspond to the national guidelines of treatment. Thus, having examined all the material submitted to it, the Court has identified the shortcomings in the applicant ' s medical treatment, which are noted above and listed in the appended table. The Court has already found a violation in respect of issues similar to those in the present case (see   Nevmerzhitsky   v.   Ukraine , no.   54825/00, §§   103-05, ECHR 2005 - II ( extracts ); Melnik v.   Ukraine , cited above, §§   104-06; Logvinenko v.   Ukraine , no.   13448/07 , §§   68-78, 14   October 2010; Sergey Antonov v.   Ukraine , no.   40512/13 , §§   76-90 , 22   October 2015 ; and Pivovarnik v.   Ukraine , no.   29070/15, §§   37-46, 6   October 2016). Bearing in mind its case-law on the subject, the Court considers that in the instant case the applicant did not receive comprehensive and adequate medical care whilst in detention.

13.     These complaints are therefore admissible and disclose a breach of Article 3 of the Convention.

II.     APPLICATION OF ARTICLE   41 OF THE CONVENTION

14.     Article   41 of the Convention provides:

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

15.     Regard being had to the documents in its possession and to its case - law (see, in particular, Logvinenko v.   Ukraine, cited above, §§   89-95), the Court considers it reasonable to award the sum indicated in the appended table. It rejects any additional claims for just satisfaction raised by the applicant.

16.     The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

1.     Declares the application admissible;

 

2.     Holds that this application discloses a breach of Article   3 of the Convention on account of the inadequate medical care in detention;

 

3.     Holds

(a)     that the respondent State is to pay the applicant, within three months, the amount indicated in the appended table, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b)     that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

 

4.     Dismisses the remainder of the applicant ' s claims for just satisfaction .

Done in English, and notified in writing on 27 June 2019 , pursuant to Rule   77   §§   2 and   3 of the Rules of Court.

Liv Tigerstedt Yonko Grozev
              Acting Deputy Registrar President

APPENDIX

Application raising complaints under Article 3 of the Convention

( inadequate medical treatment in detention )

 

 

[1] .     Plus any tax that may be chargeable to the applicant.